The Supreme Court Turns Its Back on Age Discrimination

After its recent decision, here are a few ideas to protect older workers

Age discrimination is widespread, well documented and, sadly, deeply entrenched in the American workplace. It’s also illegal, thanks to the 50-year-old Age Discrimination in Employment Act (ADEA), which is aimed at protecting people 40 and older from discrimination in hiring, promotion and retention at firms with 20 or more employees. Unfortunately, federal courts have also increasingly made age discrimination claims difficult to prove.

Ideal Candidate: ‘2-3 Years Out of College’

The most recent example: The Supreme Court’s June 26th decision to let stand a lower court ruling known as Villarreal v. R.J. Reynolds Tobacco. In that case, Richard Villarreal applied online for a territory sales manager job at the tobacco company in 2007 when he was 49 and got no response. Several years later, he learned about the company’s internal guidelines stating that the ideal candidate would be “2–3 years out of college.” Job reviewers were told to “stay away from” applicants whose resumés showed they had been “in sales for 8–10 years.” The courts dismissed Villarreal’s suit saying the ADEA claim he brought only protected existing employees, not job applicants. The courts also agreed with Reynolds that Villarreal hadn’t “diligently” pursued why he didn’t hear back about his application.

“The high court’s decision will make it harder for some people later in their work lives to prove they were victims of bias,” wrote ProPublica’s Peter Gosselin, who has been doing great reporting on workplace age discrimination for the investigative journalist organization. (You can read his ProPublica work here.)

‘Reasonable Factors Other Than Age’

The Supreme Court and many lower courts increasingly defer to employers on hiring and employment decisions when it comes to what the ADEA calls “reasonable factors other than age.” (For example, employers can justify as a reasonable business decision laying off their most expensive workers who happen to have seniority and are mostly older.)

The most striking sign of the trend is the landmark 2009 Supreme Court ruling known as Gross v. FBL Financial Services. In the Gross case, which still holds today, the court said claimants must prove that age discrimination was the primary factor behind a bias claim. As you can imagine, proving this is extremely difficult, if not impossible.

Discouraged From Bringing Age Discrimination Cases

“There are reports that private attorneys and the workers who walk into their offices seeking representation have been discouraged from bringing ADEA cases,” said Laurie McCann, senior attorney, AARP Foundation litigation in recent testimony before the Equal Employment Opportunity Commission celebrating the 50th anniversary of the signing of the law.

Outrageous, isn’t it? Older Americans want to work and some combination of ageism and algorithms denies them that opportunity. What can be done? Quite a bit, actually.

What Congress Could Do

For starters, here are three things Congress could do:

Pass the bipartisan Protecting Older Workers Against Discrimination Act. It would restore legal standards for age discrimination claims to the pre-Gross days.

Make it clear that so-called sex-plus-age claims are allowed. “We need to focus on older women because they are really working longer and they face more discrimination than men,” says Patrick Button, assistant professor of economics at Tulane University.

Broaden the ADEA to include all firms. The employment rate for older workers is higher in states whose age discrimination statutes cover all firms.

Of course, these types of initiatives won’t garner much enthusiasm on Capitol Hill or with the Trump administration. “You have to amend the statutes and that’s not likely in the current political climate,” says Michael Harper, law professor at Boston University School of Law.

What the EEOC Could Do

In the meantime, the EEOC could more vigorously enforce the federal age discrimination law. Age discrimination was alleged in 23 percent of all charges filed with the EEOC in fiscal year 2016, yet ADEA cases constituted only two percent of its merit resolutions (where outcomes were favorable to parties charging discrimination), according to the AARP.

That said, the EEOC did act aggressively in the Texas Roadhouse discrimination case it brought in 2011 against the steakhouse chain, the agency’s largest age discrimination case brought to trial in over 30 years. Federal officials said the Kentucky-based company had “a history of labeling workers over 40 such things as ‘Old ‘N Chubby’ and rejecting them for jobs where customers see them,” wrote Gosselin. Texas Roadhouse denied the allegations. After a district court judge declared a mistrial in February due to deadlocked jurors, Texas Roadhouse settled with the EEOC by agreeing, among other things, to pay $12 million and to change its hiring and recruiting practices. Texas Roadhouse is a good model for the agency to follow.

‘Safe Harbor’ Hiring for Older Workers

Another intriguing idea is for the EEOC to create what is known as “safe harbor” hiring, says Samuel Estreicher, a law professor and faculty director of the Center for Labor and Employment Law at the New York University School of Law.

Safe harbor hiring could be especially useful for one group of people who often face severe difficulties finding employment: Laid-off individuals 50 and over who’ve worked for many years for their previous employer and now seek new employment. Frequently, employers snub them due to fears that the applicants will lack energy or skills. It’s a way to “help employers take a chance on older people,” says Estreicher.

Here’s how it might work. Older workers would be hired over a two-or three-year probationary period and could be discharged without cause or consequence for the employer under the ADEA during that time. The bet is that management will learn they have underestimated the value of seasoned workers and a new, more favorable narrative will emerge.

“The benefit of the safe-harbor approach is that it directly addresses the concerns that materially influence the employer’s nonhiring decision,” wrote Estreicher in his June 2017 Journal of Law & Public Affairs article “Achieving Antidiscrimination Objectives Through ‘Safe Harbor” Rules for Cases of Chronic Hiring Aversion.”

I’d love to see the safe harbor approach supplemented with restoring and funding ADEA provisions for re-education and training programs to help older workers get hired. These programs “were never properly implemented or funded and were eventually abandoned,” wrote Jessica Rothenberg and Daniel Gardner of New York University’s Silver School of Social Work.

The timing may be propitious for an experiment combining safe-harbor hiring and well-funded training programs for older workers. After eight years of steady economic growth and an unemployment rate at 4.4 percent, employers are currently looking for workers. Yet management too often seems blind to the opportunities available from recruiting older applicants with skills, knowledge and experience. Maybe a public policy nudge will open managements’ eyes.